Trailer of Tears

FEMA case points to NM lawyer

A lawyer currently employed by the state of New Mexico could provide key testimony about how the government handled—or chose not to handle—toxic levels of formaldehyde in emergency housing for Hurricane Katrina victims.

So say the lawyers for some of those Katrina victims—an estimated 40,000 of whom have obtained legal counsel and are closely watching a series of trials against four travel trailer manufacturers unfolding in the US District Court for the Eastern District of Louisiana. In all four cases, the evacuees also are suing the Federal Emergency Management Agency (FEMA), which they claim suppressed knowledge of toxic formaldehyde levels in the trailers.

The evidence of FEMA’s alleged negligence spirals out from the email box of Patrick Edward Preston, who was formerly contracted as a trial attorney for FEMA. Preston now works as a staff attorney in the New Mexico Taxation & Revenue Department.

In June 2006, Preston wrote to FEMA staff: “Do not initiate any testing until we give the OK. While I agree we should conduct testing we should not do so until we are fully prepared to respond to the results.”
Preston added in the email that if tests indicated a problem, “the clock” would be running out on “our duty to respond to them.”

The Sierra Club initiated its own sampling and found 88 percent of the units had elevated levels of formaldehyde, a toxin that can cause nose bleeds, headaches and throat irritation in the short term; in high enough doses, with prolonged exposure, formaldehyde has been linked to cancer. Many evacuees lived in the trailers for several years, Sierra Club spokesman Oliver Bernstein tells SFR.

“Basically, we were ignored by FEMA, the Centers for Disease Control and Prevention, just about everybody for a while,” Bernstein says. “We were really outraged that there was no response to this. The people in the community and the people in these emergency housing units were already storm victims and were basically being victimized again by the government.”

An investigation by the House Oversight and Government Reform Committee released in July 2007 first revealed Preston’s email exchange. Katrina victims and advocates pointed to it as a smoking gun.

“‘Don’t test; we don’t want to own this problem,’” is how Sierra Club Formaldehyde Campaign Director Becky Gillette summarizes FEMA’s attitude toward the issue to SFR. “At one point, I wondered whether I was living in an alternative universe or something because they could just continue to deny this was a problem when there were so many people who were sick.”

Preston left FEMA in 2007 for New Mexico. He passed the New Mexico bar exam in 2008 and currently represents the NMTRD in tax litigation.

“To the extent stuff has been made public, I can’t actually explain what was going on behind the scenes,” Preston tells SFR. “It’s awkward for me, but it has been all along.”

Preston says attorney-client privilege has left him powerless to defend his name from critics such as Monroe Freedman, a legal ethics professor at Hofstra University.

“These lawyers should be disbarred for incompetence,” Freedman told the San Francisco Chronicle. “They should also be held liable civilly for complicity in whatever harm was suffered by the residents of the trailers after their knowledge of the severe health risks.”

Preston says Freedman doesn’t have all the facts. “The notion that we were bad people, impeding these things—none of that is true, absolutely none,” he says. “Maybe at some point this will become understood.”

Justin Woods, a trial attorney representing several of the plaintiffs, says he hopes to find a solution that will allow attorneys to take Preston’s deposition. FEMA emails could prove crucial to the case.

“The emails may show or help explain to a jury what FEMA knew and when they knew it,” Woods says. “I put no spin on it. I’m not certain what it will show, but it’s a story that needs to be told. If [Preston] feels that it will show a better picture than he thinks is shown now, well, I’m not saying that’s not true. I’m just saying we don’t know better at this point.”

The first trial against FEMA and Gulf Stream Coach begins Sept. 14, with three trials against other trailer manufacturers spread out through January. The outcome of these initial “bellwether” trials, Woods says, will pave the way for future resolutions, including settlements.